ecostory - Peter Singer on the anti-environmental ways of working of the
World Trade Organisation and their "justification"

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The World Trade Organisation's aim is to promote "trade". That their kind of "free trade" appears to be heavily benefitting the rich countries and increasing the gap between the world's poor and the rich, this has meanwhile been recognised by many.

As regrettable as this is for the poor, the distribution of wealth between people and peoples does not make a environmental difference. For the planet it is the same, whether 20 per cent of the 6,4 billion humans consume 80 per cent of the resources or whether resource consumption is equitably shared by all.

It is the total weight on the planet that all humans have together that matters. And this total footprint on our Earth is far too big and absolutely unsustainable. At the present rate of consumption, even without growth, many resources will irretrievably depleted within a small number of generations.

The WTO does not only shift the balance towards the rich. It also has a set of rules and practices that are profoundly anti-environmental and seriously hamper and obstruct any honest effort to protect environmental, social and moral values. The below account of Peter Singer from the Human Values Department of Princeton University may demonstrate some of ways in which the WTO harms the planet - people and other life alike.

One Economy - [p.60]The Misuse of the Product/Process Distinction
Extract from "One World" (pages 60 to 70), by Peter Singer
(2004, Yale University Press - Copyright notice...)

This "product" versus "process" distinction is crucial to understanding the impact of WTO rules in many areas. As the tuna-dolphin case exemplifies, and as later decisions have reiterated, the WTO operates on the basis that a country cannot ban a product on the basis of the process by which the product was made but only by showing that the banned product is different in its inherent nature from other products. In matters relating to the killing or mistreatment of animals alone, for example, apart from the tuna-dolphin case, the WTO has had the following impact:
  • In 1991 the European Union agreed to prohibit, from 1995, the sale of furs that had come from animals caught in steel-jaw leghold traps. (These traps crush and hold the animal's leg, holding the animal until the trapper returns, which may be several days. Nocturnal animals are terrified at being held out in daylight. Animals may die of thirst or from their injuries. They have been known to bite off their own legs to get free.) Because it is impossible to tell if an individual pelt has come from an animal caught in one of these traps, or by some relatively more humane method, the European Union decided to accept the import of furs only from countries that had banned the steel-jaw leghold trap. The United States, Canada, and Russia threatened to lodge a complaint with the WTO against this ban. The European Union capitulated, allowing fur caught with steel-jaw leghold traps to continue to be sold in Europe. (15)
  • In 1993 the European Union adopted a directive preventing the use of animals in cosmetics testing and prohibiting, by 1998, the sale [p.61]of cosmetics that had been tested on animals. But the European Union was advised that the prohibition on the sale rules. The ban was never implemented. (16)
  • In 1989, after prolonged public campaigning, the European Union banned the sale of beef from cattle treated with growth-promoting hormones. Health concerns were the main reason given for the ban, although animal welfare organizations have expressed concern about the implications of the hormones for the health of the cattle. (17) The United States successfully challenged the ban at the WTO, with the WTO panel finding that there was not sufficient scientific basis for believing that the use of the hormones posed a risk to human health. The European Union appealed, but the WTO's appellate body also found in favor of the United States. When the European Union nevertheless refused to lift the ban, the WTO authorized the United States to retaliate by imposing 100 percent duties on $116 million of EU agricultural products. (18)
The decisions in all of these cases rest on the claim that the product - the fur, the cosmetic, the beef - is the same product as other products allowed to be sold in the country, and the fact that they are the outcome of a different process is irrelevant. But why is it irrelevant? What does the product/process distinction have to do with the rejection of unfair trading practices that, according to IO Common Misunderstandings, is the reason why the WTO prohibits some forms of environmental protection? At first glance, nothing at all. But Trading into the Future suggests the following link:
    What was the reason behind. . . [the tuna-dolphin] ruling? If the U.S. arguments were accepted, then any country could ban imports of a product from another country merely because the exporting country has different [p.62]environmental, health and social policies from its own. This would create a virtually open-ended route for any country to apply trade restrictions unilaterally. . . the door would be opened to a possible flood of protectionist abuses. (19)
Now we can see how misleading the statement in 10 Common Misunderstandings is. In that document the WTO defends itself by claiming that under its rules, environmental protection measures are prohibited only if those measures treat foreign producers more harshly than domestic producers. But what really happens when the WTO considers a case where the law is applied fairly to both domestic and foreign producers? The issue becomes, not whether foreign producers were in fact treated more harshly than domestic producers, but whether allowing a country to prohibit a product because of the way in which it was produced could open the door to "a flood of protectionist abuses." Even if we assume that this flood really would occur, the argument assumes that the value of preventing such a flood of protectionist abuses is greater than the value of protecting the environment, animals, and community peace of mind - greater, for example, than the value of protecting millions of dolphins from cruel and premature death, of stopping the barbarity of the steel-jaw leghold trap, or of providing the public with the peace of mind they seek in respect to their concerns about the hazards of hormone-treated beef. And these are just three among the countless things we value that our governments might, but for WTO rulings, see fit to protect by prohibiting the import of products produced in ways we consider objectionable. Import prohibitions against goods produced in ways that violate human rights - for example, by using forced lab or, or pushing indigenous people off their land - would also fail to pass the test of being [p.63]applied to a product, rather than a process. If any form of protection, no matter how fair it is in the way it treats domestic and foreign enterprises, is ruled out because it targets a process rather than a product, that will drastically curtail the means by which a nation can protect its values.

In any case, there is no solid ground for believing that the product/process distinction is the only way to stop a flood of protectionist legislation. There are more finely grained ways in which dispute panels - made up of, the WTO tells us, experts in trade and law - can distinguish disguised or unjustifiable protectionism from reasonable measures to protect the environment. The first test should be, as both 10 Common Misunderstandings and the November 2001 WTO Ministerial Declaration suggest, whether the measure taken to protect the environment or animal welfare, or whatever other legitimate objectives a nation may have, deals evenhandedly with the nation's own producers and with foreign producers. If it does, then the measure is prima facie acceptable, and any nation seeking to have it invalidated should be required to show that the environmental or other objectives the measure purports to aim at could reasonably have been achieved without restricting trade to the extent that the measure does restrict it.

Trading into the Future claims, in the passage just quoted, that if the V.S. argument in the tuna-dolphin case had been accepted, "any country could ban imports of a product from another country merely because the exporting country has different environmental, health and social policies from its own." The use of the term "merely" here is noteworthy, for the "different policies" in the exporting countries might be ones permitting the dumping of toxic wastes into the ocean, extreme cruelty to animals, or denying workers the right to unionize. The implication is that these are somehow less important reasons for banning a product [p.64]than those that are concerned with the inherent qualities of a product, which the WTO would unhesitatingly accept, as long as the bans did not discriminate between domestic and foreign producers. There is, however, no reason to think that our support for the environment, for animals, and for human rights is any less important than the desire to protect one's citizens from products that are of inferior quality.

In any case, the suggestion that the importing country is, by banning the product made in ways harmful to the environment or to animals or to workers, trying to exercise extraterritorial powers over the exporting country is misleading. This may be the case, and it would not necessarily be wrong - as we shall see in the next chapter, it is sometimes justifiable to intervene militarily to prevent flagrant human rights abuses in other countries, so it can hardly always be wrong to try to prevent such abuses by trade measures - but it is not true that any prohibition of a product made in another country because of the process by which that product is made must be an attempt to exercise extraterritorial powers. Just as a country might ban the sale of a pesticide, whether of domestic or foreign origin, because it is toxic to wildlife - and to that ban the WTO would not object - so a country might ban the sale of a product, whether domestic or foreign, because the process by which it is made is toxic to wildlife. Wild animals need not be seen as the property of one country. The process by which the product is made might kill migratory birds or, as with the dolphin and sea turtle cases, animals living in the oceans. Even when the animals killed live entirely within the borders of the country making the product, however, the country seeking to ban the product may think that it is wrong to be indifferent to the death and suffering of animals and may find it morally objectionable for a product made in a way that displays such indifference to be sold within its jurisdiction. The ethical argument that motivates [p.65]the other chapters of this book is relevant here too: just as there is no sound reason why the citizens of a state should be concerned solely with the interests of their fellow citizens, rather than with the interests of people everywhere, so there is no sound reason why the citizens of a state should be concerned with the well-being of animals only when those animals are living within the boundaries of their own state. Given this, if a state decides that the steel-jaw leghold trap is cruel and immoral, and it prohibits within its own borders the use of the trap as well as the sale of any furs that come from animals trapped in that manner, this decision comes squarely within the conventionally accepted powers of sovereignty over its own territory. If this principle of prevent-ing the sale of morally objectionable products within one's own borders is rejected, then how could a country be justified in prohibiting the import of films that display acts of real, non-consensual sexual violence, even sexual violence resulting in death (as in so-called "snuff movies")? No one regards prohibiting such films as objectionable because it is an attempt by one nation to prevent the "extraterritorial" rape and murder of women and children. Yet here too it is the "process" that is the reason for the pro'hibi-tion. The final product may be indistinguishable from a film in which skilled actors who are not harmed perform the same scenes. As far as claims of "extraterritoriality" are concerned, it is hard to discern a difference of principle between the prohibition of snuff movies and the prohibition of furs from leghold traps.

It would, of course, be both possible and consistent with the overall argument of this book to favor a reduction in the significance of national sovereignty and to hold that global or transnational bodies should decide such issues. But that cannot happen until there are such bodies, with procedures - hopefully democratic and responsive to public opinion - by which these questions can be decided.

[p.66]The Undermining of GATT's Article XX
Notwithstanding the use that the WTO disputes panels have made of the product/ process distinction, one article of the Gen-eral Agreement on Tariffs and Trade appears to give explicit bless-ing to import bans undertaken for various purposes, including the protection of the environment. Article XX reads, in its rele-vant sections, as follows:
    General Exceptions
    Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
    (a) necessary to protect public morals;
    (b) necessary to protect human, animal or plant life or health; . . .
    (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
The most natural reading of this article would give a country several grounds on which it could prohibit the importation of goods obtained in ways that threaten dolphins or cause great suf-fering to animals. Clause (b) allows exceptions to protect animal life, and clause (g) allows an exception to conserve "exhaustible natural resources." A prohibition on importing products pro-duced by unethical methods of fishing or by the use of cruel traps could also be justified by clause (a), which refers to the protectionof "public morals." If this means the morals people actually have, then there are many countries in which the unnecessary killing of animals, especially those of endangered species, offends against moral standards widely held by the general public. The sale of products that result from such killing is as offensive to public morals as, say nudity would be in some countries. If, on the other hand, the clause referring to the protection [p.67]of public morals is in-tended to refer to sound moral values, irrespective of how widely they are held, then the case against products obtained by cruel methods is much stronger than the case against mere nudity.

In the sea turtle case the United States argued that its prohibi-tion on the importation of shrimp caught by fishing fleets not us-ing devices to exclude sea turtles was allowable under clauses (b) and (g) of Article XX. After this argument was rejected by the dis-pute panel on grounds consistent with the tuna! dolphin case, the U.S. appealed, but the appeal was again .rejected. This time the WTO's Appellate Body did accept that a measure to protect en-dangered species could fall under the exemptions. It nevertheless rejected the U.S. shrimp prohibition on the grounds that it re-quired essentially the same methods of excluding turtles used by domestic vessels to be used by other nations, instead of allowing other methods of avoiding the killing of turtles. As the Appellate Body put it:

We believe that discrimination results not only when countries in which the same conditions prevail are differ-ently treated, but also when the application of the measure at issue does not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries.(20)

At one point in its judgment the Appellate Body remarked that "it is relevant to observe that an import prohibition is, ordinarily, [p.68]the heaviest 'weapon' in a Member's armoury of trade measures" (par. 171), an observation that apparently leads it to take the view that all other avenues for achieving the desired objective must have been exhausted before an import prohibition can be adopted. The United States then entered into negotiations with other countries to reach a multilateral agreement on the use of turtle-excluding devices. Meanwhile it retained its ban on the importa-tion of shrimp caught by ships not using such devices. Again a dispute arose about the ban, and finally, in November 2001, the Appellate Body accepted that the United States was doing enough. As long as the United States was engaging in "ongoing, serious good faith efforts" to reach a multilateral agreement on the pro-tection of sea turtles, the import ban could remain in place.(21)

Perhaps the decision in the sea turtle case - the only example in the entire history of both GATT and the WTO that a unilateral, extraterritorial national measure involving trade restrictions has been upheld on environmental grounds - is evidence that since Seattle the WTO has become more sensitive to criticism of its environmental record. Certainly, an examination of that record prior to November 2001 justifies the statement with which we began: "In the WTO, commercial interests take precedence over environmental protection." Far from being a misunderstanding, this has turned out to be true. Whenever a dispute has required a choice between free trade and support for a non-discriminatory national policy intended to protect the environment, the WTO's verdict before November 2001 was that the policy is an illegal barrier to trade.(22) The WTO justified these decisions either on the basis of the product/process distinction or because the restriction is supposedly arbitrary or unjustifiable discrimination. There are two possible justifications for the product/process rule. The first is the claim that to prohibit a product because of the way in which it is made is to attempt to exercise extraterritorial jurisdiction. We have seen that this argument is [p.69]spurious. The second possible justification is that to depart from the product/process rule may make it more difficult to distinguish genuine measures for protecting the environment, or other legit-imate concerns, from disguised forms of protectionism. Regarding that justification as sufficient to reject the environmental pro-tection policy does give commercial interests precedence over environmental protection. Where the Appellate Body has found arbitrary or unjustifiable discrimination, it has been able to reach this finding only because it requires that the trade restriction be the last possible resort after every other avenue has been ex-hausted. Like the product/process rule, this criterion means that, whatever the Appellate Body may say, the substance of its decisions shows clearly that "commercial interests take precedence over environmental protection." In fairness, it needs to be said that these commercial interests may be those of the developing nations, as well as those of the developed nations. Either way, the record of the WTO to date enables us to see why LeestefIY Jenkins and Robert Stumberg, experts in law and animal protection reviewing that record for the Humane Society of the United States, should claim that, "in effect, free-market theory preempts all other social values."(23)

November 2001 may prove to be a watershed month for the WTO, because in addition to the ground-breaking decision in the sea turtle case, that month also saw signs, at the WTO Ministerial meeting in Doha, of a willingness to reconsider the rules en-suring that free trade trumps other values. As we have already seen, the Ministerial Declaration contained language suggesting that WTO rules should not prevent member nations from protecting the environment and animal and plant health, as long as they do so evenhandly. In addition, at the insistence of the Euro-pean Union, the meeting allowed for the inclusion of, in the next round of trade talks, discussions on "non-trade concerns" in agriculture. One of these concerns is maintaining the economy of [p.70]rural areas where the local economy depends on small farms that would not be able to withstand competition from other countries where, farming is on a much larger scale. Preserving village life and the traditional European landscape is a value that needs to be considered alongside the benefits of free trade. Another legitimate concern is animal welfare. The European Union, which has relatively enlightened legislation on the treatment of farm animals, is seeking to ensure that its farmers will not have to face competition from other countries that permit forms of cruelty to animals not allowed in Europe. The Ministerial Declaration noted these concerns and agreed that they would be part of the negotiations on the next round of measures to liberalize trade, to be concluded by 2005.(24) It remains to be seen whether, in the negotiations to come, values other than that of free trade will be given real weight. If they are not, we will all know that, in signing the 2001 Doha Ministerial Declaration (with its plain statement that evenhandedness and non-discrimination are the only requirements that the WTO imposes on countries seeking to protect the environment), the delegations of the WTO's member nations were either themselves deceived about how the WTO really operates or were trying to deceive the rest of the world.

Copyright notice: We have transcribed these pages because they elucidate the ways Trade appears more important than other considerations. top

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